Monthly Archives: May 2013

Summary judgment based on proximate cause affirmed in malpractice case

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The Arkansas Court of Appeals affirmed summary judgment granted in favor a surgeon.  Black v. Rowen, 2013 Ark. App. 349.  (Here is the link: http://opinions.aoc.arkansas.gov/WebLink8/0/doc/316114/Electronic.aspx )

The plaintiff alleged the surgeon lacked the skill to deal with an intraoperative complication, and was negligent in failing to promptly call for assistance.   The opinion recites the standard of review for summary judgment, and the elements that must be proven in a medical negligence case, including the element of proximate cause:

Proximate causation is an essential element for a cause of action in negligence. “Proximate cause” is defined, for negligence purposes, as that which in a natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the result would not have occurred. Although proximate causation is usually a question of fact for a jury, where reasonable minds cannot differ, a question of law is presented for determination by the court.

But in spite of the admonition that proximate cause is usually a question of fact for a jury, the Court of Appeals in this decision affirmed summary judgment, holding there was a lack of proof on how the injury was sustained and that calling a qualified surgeon sooner would have prevented the damages.

Commentary:  Juries are the arbiters of disputed facts.  Here, there seems to be ample proof to submit the case to a jury.  Proximate cause is a unique element.   It is rarely susceptible to direct proof.   It is often inferred as the essential link between the proven negligence and damages.

“Our case law is replete with the proposition that causation is almost always a question of fact for the jury and not appropriate for summary judgment.” Green v. Alpharma, 373 Ark. 378, 395, 284 S.W.3d 29, 42 (2008), citing Southeastern Distributing Co. v. Miller Brewing Co., 366 Ark. 560, 237 S.W.3d 63 (2006); Miller Brewing Co. v. Roleson Inc., 365 Ark. 38, 223 S.W.3d 806 (2006); Coca-Cola Bottling Co. v. Gill, 352 Ark. 240, 100 S.W.3d 715 (2003); and Wal-Mart Stores, Inc. v. Lee, 348 Ark. 707, 74 S.W.3d 634 (2002).    

Without the benefit of the expert affidavits and deposition testimony, it is impossible to fully evaluate exactly what proof was submitted.  However, the excerpt from the plaintiff’s affidavit at page 3 of the opinion seems to address the proximate cause issue directly:    “. . . followed procedure required by the standard of care and called for assistance from one of the on-call surgeons for that day, it is more likely than not Mr. Black would not have suffered the injuries he did.”

This decision is likely to confound trial courts and litigants grappling with the legal standard for proximate cause at the summary judgment stage.  Perhaps the Arkansas Supreme Court will review the decision and clarify this point.

Tim Cullen

Overnight guests in violation of decree requires finding of contempt in custody case

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This case is best summarized by this excerpt from the decision:

The decree of the trial court contained a provision prohibiting the parties from having
overnight romantic partners while the children were present. Uselton never challenged the
validity of the underlying court-ordered overnight-guest provision below. Rather, she argued
that her conduct did not fall within the provision. The court specifically found that her
conduct fell within the provision and found that her violation of that provision was willful.
Willful disobedience of a valid order of a court is, by definition, contemptuous behavior. See
Henderson v. Dudley, 264 Ark. 697, 710, 574 S.W.2d 658, 666 (1978) (“[T]he disobedience
of any valid judgment, order or decree of a court having jurisdiction to enter it is such an
interference with the administration of justice as to constitute contempt.”). Yet, the court did
not find her in contempt. Because we cannot reconcile these two findings, we reverse and
remand.

Davenport v. Uselton, 2013 Ark. App. 344.  http://opinions.aoc.arkansas.gov/WebLink8/0/doc/316118/Electronic.aspx

Rebriefing ordered for a third time

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Apparently it will take three tries to get this appeal decided.   First, the parties failed to secure a final order from the trial court, and the appeal was dismissed.  Chesapeake Exploration, LLC v. Whillock, 2012 Ark. App. 397.  Then the parties obtained the necessary final order, and filed a second set of briefs.   But the second appeal was also dismissed.  Chesapeake Exploration, LLC v. Whillock, 2013 Ark. App. 339.  This time the Court of Appeals faulted counsel for failing to abstract excerpts from depositions that were reproduced verbatim in the addendum.  Here’s the short opinion ordering the appeal dismissed: http://opinions.aoc.arkansas.gov/WebLink8/0/doc/316117/Electronic.aspx

Arbitration agreement for internet auto sale is enforceable

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The Arkansas Court of Appeals reversed a trial court’s ruling denying arbitration, holding that an arbitration agreement related to the sale of an automobile conducted over the internet is valid and enforceable, even where an officer of the seller did not sign the agreement. The Court of Appeals held:

As in Arkansas, parties may become bound by the terms of the contract even if they do not sign it, if their assent is otherwise indicated, such as by the acceptance of benefits under the contract or by the acceptance of the other’s performance. Lankford v. Orkin Exterminating Co., 597 S.E.2d 470 (Ga. Ct. App. 2004); Comvest, L.L.C. v. Corporate Sec. Grp., 507 S.E.2d 21 (Ga. Ct. App. 1998).

The case is Asbury v. McCain, 2013 Ark. App. 338.   Here is a link: http://opinions.aoc.arkansas.gov/WebLink8/0/doc/316134/Electronic.aspx

Court of Appeals affirms defense verdict in case involving admitted liability for a retained six-inch clamp after abdominal surgery.

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This case (Thomas v. Sharon, 2013 Ark. App. 305) handed down by the Arkansas Court of Appeals this week is an example of the deference appellate courts give to jury verdicts, and that malpractice cases can be successfully defended on causation and damages, even when liability is admitted.

http://opinions.aoc.arkansas.gov/WebLink8/0/doc/315838/Electronic.aspx

B&B v. Hargis, part III

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In this long-running trademark dispute, two competing businesses litigated the trademarked names “Sealtight” and “Sealtite.”  B&B lost at trial in federal court in Little Rock.   Cullen was retained to appeal the verdict to the U.S. Court of Appeals for the 8th Circuit.  The 8th Circuit heard oral arguments on April 17, 2012.

http://8cc-www.ca8.uscourts.gov/OAaudio/2012/4/103137.mp3

At the conclusion of the oral argument, Judge Loken stated it was a complex case that was very well briefed and argued.  The main issue on appeal involved whether the trial court erred in excluding a prior decision from the Trademark Trial and Appeal Board in favor of B&B.  The three-judge panel issued an opinion on May 1, 2013, affirming the trial court’s exclusion of the TTAB decision, but reversing on the award of attorneys fees.

http://media.ca8.uscourts.gov/opndir/13/05/103137P.pdf

Judge Colloton authored a pesuasive dissent stating in part:

I reach a different conclusion on the question of collateral estoppel that is raised in this case. Because the Trademark Trial and Appeal Board previously decided the same question about likelihood of confusion that was at issue in the trial of this case, Hargis Industries should not have been permitted to relitigate that point.  I would therefore vacate the judgment of the district court and remand for further proceedings.

B&B plans to seek rehearing en banc.   Because of divergent opinions from different circuits on this issue, B&B may also seek certiorari.

Here is an article about the decision.  http://www.law360.com/appellate/articles/437854